Tuesday, December 3, 2013
First Court Challenge FiledTo State Statute Restricting Assistance to Consumers Seeking ACA Coverage
Thursday, November 7, 2013
According to a November 4th Justice Department release, Hospice of the Comforter, Inc. (HOTCI), a company based in Florida, has agreed to pay $3 million to resolve claims it submitted false claims for services covered by Medicare for hospice patients. The company also has issued a statement regarding the settlement, linked on its home webpage.
The report on HOTCI is the latest in a series of settlements or agreements related to whistleblower allegations of Medicare fraud in the hospice industry. In addition to payments to be made over a period of years, the Justice Department reports that HOTCI has entered into to a "corporate integrity agreement" with the Inspector General for Health and Human Services. Further, "HOTCI’s former Chief Executive Officer Robert Wilson has agreed to a three-year, voluntary exclusion from Medicare, Medicaid and other federal health care programs," according to the Justice Department release.
The original whistleblower in the HOTCI case, a former executive, reportedly objected to the $3 million settlement, calling it unreasonably low.
On the one hand, settlements are sometimes criticized as sending the wrong message, arguing agreements to pay comparatively low figues act as a cost of doing business in otherwise still profitable industries, such as the hospice industry. On the other hand, whistleblowers under the False Claims Act stand to recover a percentage of the amounts recovered in the cases.
Other recently reported settlements with hospice providers:
- Hospice of Arizona L.C. and related companies ($12 million, May 2013)
- Multi-state provider Odyssey HealthCare ($25 million, March 2012)
- South Carolina's Harmony Care Hospice Inc. ($1.2 million, November 2012)
- Alabama-based, multi-state SouthernCare Inc. ($24.7 million, January 2009)
Thursday, September 26, 2013
HHS Approval of State's Cuts to Medicaid Reimbursement Rate Ruled Arbitrary & Capricious: 3d Circuit
In 2008, as required by federal law, Pennsylvania submitted proposed amendments to its State Medicaid Plan for approval by the U.S. Health and Human Services (HHS). The amendments created an across-the-board 9% reduction in the per diem reimbursement to nursing homes for care of residents eligible for Medicaid. The amendments were approved by HHS.
In 2009, a group of private nursing homes in Pennsylvania filed suit challenging the cuts, arguing the "BAF" method used to calculate the reductions failed to consider the impact of the cuts on quality of care, particularly after several years of cuts. The nursing homes sought declaratory and injunctive relief against officials at the federal HHS and Pennsylvania Department of Public Welfare (DPW), as well as monetary relief.
On September 19, 2013, the Third Circuit granted partial relief to the nursing homes, concluding there was no record by which HHS could make a proper review of the modifed state plan. The Court observed:
"Absent information on how the appropriated amount was determined, or a reasoned explanation for why that amount allows for rates that are 'consistent with' efficiency, economy, quality of care, and adequate access, DPW's description of the BAF methodology provides no insight into whether the [State Plan Amendment] complies with Section 30(A). The state gave no such information, and HHS did not request any. There are no studies or analyses of any kind in the record, and the only 'data' DPW provided was a spreadsheet comparing rates under the proposed SPA with those paid the previous year. HHS therefore had to base its approval decision solely on the proposed methodology itself, a comparison to the previous year's rates, and DPW's unsupported assertion that the new BAF would permit 'payment rate increases sufficient to assure that consumers will continue to have access to medically necessary nursing facility services.'”
While recognizing that state plans approved by federal agencies ordinarily warrant Chevron deference, the Third Circuit concluded deference was inappropriate in this instance. The court could not discern from the record a reasoned basis for the agency's decision and therefore the judges concluded HHS's "approval of the [2008 Amendments] was arbitrary and capricious under the APA."
Cuts to Medicaid reimbursement rates for nursing homes eventually affect residents, of course. Could states that skip key steps in approval for other changes to State Plans also be subject to due process challenges?
For the Third Circuit's detailed and technical decision, including reasons for its denial of monetary relief, see Christ the King Manor, Inc, et al v. Secretary of HHS.
Wednesday, September 25, 2013
The National Senior Citizens Law Center recently released "Why SSI Needs an Appeal Process that Works," NSCLC's first white paper describing the fate of non-disability claimants who experience improper suspensions or reduction of Supplemental Security Income (SSI) benefits, serious problems compounded by the lack of an effective and fair appeals process. Working with Legal Service programs and advocates around the country, NSCLC has identified pervasive flaws in the system, including the Social Security Administration's failure to:
- Process appeal requests;
- Continue benefit payments during the appeal;
- Conduct conferences required by law; and
- Issue adequate written decisions, permitting effective review or reconsideration.
These due process violations often go unchallenged because of the inability of claimants to find attorneys skilled or interested in handling appeals. The Social Security Act does not provide for awards of attorneys fees to successful claimaints on non-disability SSI appeals. On almost all levels, the system is stacked against the non-disability SSI claimant. NSCLC attorney Kate Lang explains:
"For the low-income individuals who depend on SSI benefits to access housing, food, medical care and other necessities, their inability to pursue an appeal effectively can have immediate, severe consequences. When their income is incorrectly stopped or reduced, these vulnerable individuals face hunger, homelessness and the inability to access vital medications."
NSCLC attorneys are advocates for the nation's elderly poor, and urge specific systemic change. For news stories tracking NSCLC projects to secure the health and financial security of older persons, see NSCLC in the News.
Friday, September 13, 2013
From the good folks at the National Senior Citizens Law Center, we have a webinar, providing an update on their victory in Clark v. Astrue. That's the class action case where NSCLC was successful in challenging the summary suspension of Social Security or other benefits for individuals with pending arrests warrants or other criminal record entries.
The free NSCLC/NCLC on-line program takes place on September 25, 2013, at 2 p.m. EDT. Details, including registration, available on the NSCLC website: "Fugitive Felons: Clark v. Astrue Implementation for SSI, Social Security & Similar Provisions in Other Benefit Programs."
Wednesday, September 11, 2013
In the most recent federal appellate court ruling on spousal annuities as a Medicaid planning tool, the 8th Circuit ruled on September 10, 2013 that under existing Medicaid law, the wife's irrevocable spousal annuity (purchased before the husband's application for Medicaid, using $400,000 of the couple's savings) was not a countable resource, and therefore did not make the applicant-husband ineligible for Medicaid.
The 8th Circuit in Geston v. Anderson cites Lopes v. Department of Social Services, 696 F.3d 180 (2d Cir. 2012) and James v. Richman, 547 F.3d 214 (3d Cir. 2008) as support for the decision that the annuity in question must be treated as the community spouse's unearned income, and thus exempt from treatment as a resource available to the applicant spouse.
Hat tip to Robert Clofine, Esq. for latest news.
Tuesday, August 27, 2013
We are seeing a lot of information coming out from the federal government as a result of the Windsor ruling. Most recently, a colleague sent me a link from the IRS site with Answers to Frequently Asked Questions for Same-Sex Couples (last updated July 2, 2013). Among the 8 FAQ (in no particular order) are: "Can same-sex partners who are legally married for state law purposes file federal tax returns using a married filing jointly or married filing separately status?"; "Can a taxpayer use the head-of-household filing status if the taxpayer’s only dependent is his or her same-sex partner?"; and "If a taxpayer adopts the child of his or her same-sex partner as a second parent or co-parent, may the taxpayer (“adopting parent”) claim the adoption credit for the qualifying adoption expenses he or she pays or incurs to adopt the child?".
Meanwhile, over at Social Security, Acting Commissioner Carolyn W. Colvin issued a statement on August 9th "that Social Security is now processing some retirement spouse claims for same-sex couples and paying benefits where they are due." SSA offers several articles on benefits for same-sex couples.
The U.S. Department of Labor (by the way, they have a nifty little intro page about their upcoming 100 year anniversary) issued a revision to Fact Sheet 28F that includes in the definitions spouses in same-sex marriages. LexisNexis Legal Newsroom on Labor and Employment Law, has an interesting article on the extension of FMLA as a result of Windsor, written by Barran Liebman LLP attorneys.
Further, on August 14th, 2013, the Department of Defense announced that it was extending spousal benefits to same-sex spouses of civilian employees as well as uniformed service members. The DoD indicated the benefits would be available no later than September 3, 2013 for those with a valid marriage certificate.
"Entitlements such as TRICARE enrollment, basic allowance for housing (BAH) and family separation allowance are retroactive to the date of the Supreme Court's decision. Any claims to entitlements before that date will not be granted. For those members married after June 26, 2013, entitlements begin at the date of marriage."
The Secretary of Defense sent a memo that explained the actions and noted that since not all jurisdictions allow same-sex marriage, the DoD will issue a "non-chargeable leave" policy for military personnel who have to travel to a state to be married, with an immediately-effective memo supplementing the existing leave policy.
Stay tuned-we will keep you posted with further updates.
Photo by Kim Dayton, © 2013